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TMI Blog1992 (9) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the prayer on the ground that an altogether fresh case is sought to be made against the appellant by introducing additional evidence at this stage. The Learned Counsel also submitted that while the impugned order was issued on 6-11-1989, the hand writing expert s report about the authenticity of the Will is dated 15-9-1988 and Shri Tejmal Gang s statement is dated 13-5-1987 - which means that all these documents were available long before the adjudication order was passed. So far as Shri Tejmal Gang s statement is concerned, argued Shri Harbans Singh, it was known to the adjudicating authority but he did not make use of it and the Department is now pressing to rely on it. He said that this was not permissible under the law. He also referred to the provisions of Order XLI Rule 27 of the Code of Civil Procedure which regulates the production of additional evidence in Appellate Courts and submitted that the evidence sought to be introduced did not pass the tests and criteria prescribed in this provision. He also submitted that the additional evidence must be decisive and conclusive in character in order to be admissible and this could not be said to be the case in the present proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prayer that these documents may be allowed to be taken as additional evidence for the purpose of deciding the appeal before us. Having considered the relevance of the additional material in general, we now proceed to examine the documents one by one to see whether they can be permitted to be taken on record. 5. The first document is the statement dated 13-5-1987 of Shri Tejmal Gang. This statement was recorded by the Asstt. Commissioner of Income tax (Investigation) Jodhpur in connection with the proceedings instituted by the Income-tax authorities. Shri Harbans Singh, Learned Counsel, had objected that it should not be allowed to be taken on record because the statement was available to the customs authorities and they had chosen not to rely upon it in the proceedings. For this purpose he had referred to the statement dated 15-5-1987 recorded by the Assistant Director of Inspection, Income-tax, in which there is a reference to the statement dated 13-5-1987 in Question No. 5. His contention was that the statement dated 14-5-1987 was relied upon by the Department and figures at Serial No. 13 of the list of documents enclosed with the show cause notice and, therefore, the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. A detailed final opinion can be given after examinations of the original document. The Will . 8. Since the opinion is based on examination of a photocopy of the document, it expresses not a conclusive view but a prima facie view. Shri Harbans Singh had submitted before us that such additional evidence as is not conclusive and decisive in character is not admissible. He had referred to Mulla s commentary on Code of Civil Procedure which refers to the decision of the Madhya Pradesh High Court in the case of Sobharam Tikaram and Others Plaintiffs v. Rajkumar Munnalal and Others Defendents (AIR 1959 MP 118). We accept Shri Harbans Singh s contention and disallow the document. 9. Thus, having looked into all the seven documents individually, listed in the index enclosed with the miscellaneous application, we consider that four of them being relevant to the matter before us, they should be allowed to be brought on record while the two Declarations being subsequent to the adjudication order, and the Handwriting Expert s opinion cannot be allowed to be taken on record. Needless to say that the appellant would be permitted to produce material in rebuttal of the evidence which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 23 of the CEGAT (Procedure) Rules, 1982 and also to Rule 27 of Order XLI of the Code of Civil Procedure which regulates the production of additional evidence in Appellate Courts and submitted that the additional evidence sought to be introduced must pass the test and criteria prescribed Herein. It was also contended by him that it is strange case where the respondent has tried to introduce additional evidence after passing the impugned Order against the appellants to built up a new case. During the arguments he took us through the impugned Order-in-Original as well as the Misc. Application in hand. 14. We have considered the submissions. Before we proceed to consider the rival contentions raised by both sides, it would be useful to reproduce Rule 23 of the CEGAT (Procedure) Rules, 1982 which provides for the production of additional evidence so far as it is relevant for the purpose of the present application. The said Rule runs thus :- 23. Production of additional evidence - (1) The parties lo the appeal shall not be entitled to produce any additional evidence, either oral or documentary, before the Tribunal, but if the Tribunal is of opinion that any document should be pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his minor son Shri Abdul Maharaja (in terms of the Will) the same may kindly be noted and) the gold returned directly to us and not to Shri Himmat Singh Gang S/o Shri Tejmal Gang. He also enclosed a copy of the Will along with a copy of the dated 2nd October, 1987 addressed to the Commissioner of Income Tax. On receipt of this letter, the Customs Officers recorded the statement of Shri Abdul Gaffar. Shri Abdul Gaffar also produced a Will said to have been executed by his brother Late Shri Abdul Sattar which apparently disclosed that these is gold pieces belonged to Late Shri Abdul Sattar and kept with Shri Himmat Singh son of Shri Tejmal for safe custody had been bequeathed to his minor son. It appears that the Will also indicated that the gold was handed over in Shri Himmat Singh on 30-6-1986 and the Will was executed on 24-7-1986. It also appears that Shri Abdul Sattar died in hospital on 30-7-1986. The statement of Shri Tejmal Gang was also recorded under Section 108 of the Customs Act by the Customs Authorities on 26-11-1987 wherein inter alia he disputed the facts recorded in the Panchnama prepared by the Income Tax Officers at the time of seizure and also the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Original determining the liability of the seized gold for confiscation only observing as follows :- 5.1 ........After carefully considering the various arguments advanced by the advocates, I am of the view that the penal liability of Tejmal Gang and Himmat Singh Gang could be conclusively determined, only after cross-examination of ADI, Income Tax is completed. As such, it is necessary that only part order is issued at present, for determining the liability of the seized gold for confiscation. As such in this Order, I propose to confine myself to an examination of the issue of alleged liability of the seized gold for confiscation under Section 111 (d) of the Customs Act, 1962 and under Section 71 of the Gold (Control) Act, 1968. I shall determine the penal liability of the opponents at later date, after cross-examination of the Assistant Director of Inspection, Income Tax is completed." 16.1 After observing as aforesaid he passed the following orders :- "6. I pass the following part order : (a) I confiscate absolutely 121 gold pieces bearing markings indicating their foreign origin and of 24 carat purity, weighing 6890.500 Gms (net) under Section 111(d) of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to enable it to pronounce, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) xxxxxxxxxxxxxx" 18. Interpreting sub-rule (b), the Calcutta High Court In the goods of Premchand (1894) 21 Cal. 484,486 observed that the admissibility of additional evidence is made to depend, not upon the relevancy or materiality to the issue before the Court of the evidence sought to be admitted, or upon the fact whether or not the applicants had an opportunity of adducing evidence at some earlier stage, but upon whether or not the Appellate Court requires the evidence to enable it to pronounce judgment or for any other substantial cause . From this observation, it is clear that the relevancy or materiality of the evidence to the issue is not the criterion while deciding as to whether the additional evidence should be allowed to be produced or not. The word requires means nothing more than needs or finds needful (See : Kessowji Issur v. G.I.P Railway (1907) 31 Bombay 381 and Ganesh v. Ramadeni, AIR 1953 AP 316). In the case of Bombay Corporation v. Lala Pancham. AIR 1965 SC 1008, the Apex Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be taken on record would lead to a formal proof of the documents themselves and an opportunity would have to be taken to the other side to adduce evidence in rebuttal then additional evidence should not be admitted at appellate stage. It has been held time and again by the Apex Court that such power should be exercised sparingly. In the case of Shri Madan Mohan Sansthan v. Mt. Munnibai, AIR 1957 Nagpur 15, the Division Bench held that additional evidence sought to be produced must be of a decisive and conclusive character on a vital issue in the case and must be free from suspicion. Hence, where the evidence sought to be adduced is of such a character that if it were admitted the Court will have to try the issue de novo, no fresh trial can be granted for admitting such evidence. Following the ratio of this case, a Division Bench of the MP High Court in the case of Sobharam Tikaram and Others v. Rajkumar Munnalal and Others, supra, held that the need to admit additional evidence on ground of any other substantial cause as well must be that of the Court and the evidence sought to be produced must be conclusive in character and free from suspicion. 19. Now turning to the addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdul Gaffar) as the owner of the seized gold, and therefore, issued notice to him calling upon him to show cause as to why the seized gold be not confiscated. While deciding the liability of the seized gold for confiscation under the Customs Act and the Gold (Control) Act, he also recorded a finding that the seized gold is liable to be confiscation since under Section 123 of the Customs Act, the burden to prove that the seized gold bearing foreign marking was not smuggled into India was on Shri Abdul Gaffar who in the capacity of guardian of Shri Abdul Mehraj claiming the ownership which has failed to discharge (See pura 5.2 of the impugned Order). In paragraph 5.3 of his Order, the Collector while dealing with the argument that the seizure was not effected according to the provisions of the Customs Act, observed that I, therefore, hold that the belief entertained by the seizing officers in respect of gold bearing markings indicating their foreign origin, was reasonable and well founded in the circumstances surrounding the seizure and the burden was squarely on Abdul Gaffar claiming ownership of the gold on behalf of his nephew to prove that the gold was not smuggled. In paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of forgery by producing the said additional evidence in view of the ratio of the judgment laid down in Hurpurshad v. Sheo Dyal, supra, and the respondent also cannot be allowed to lead evidence to prove at this stage that the Will which was never doubted by the Adjudicating Authority to be genuine one was forgery in view of the ratio of the decision rendered in the case of Nadiar Chand v. Chunder, supra. Besides, I have no hesitation in saying that I do not require additional evidence to be produced in this case to enable the Bench to pronounce judgment nor do I think that any substantial cause is made out which would justify an order allowing additional evidence to be let in at this stage. Besides, the documents sought to be produced as additional evidence are not conclusive in character and free from suspicion. It is evident from the impugned Order itself that the Panchnama said to have been prepared by the Income-Tax Authorities and the statements recorded by them were challenged as not correct, and therefore, the appellant as well as the others requested the Collector to allow the cross-examination of the concerned officers. The additional evidence, if allowed to be taken on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken on record as additional evidence or not, the case is referred to the Hon ble President in terms of Section 129C(5) of the Customs Act, 1962 read with Section 81(B) of the Gold (Control) Act, 1968 for determination of the following question :- Whether in the facts and circumstances of the case the four documents listed at Serial Nos. 1, 4, 5 6, that is to say Statement of Tejmal Gang dated 13-5-1987, Statement of Shri Abdul Sattar, Copy of letter written by Smt. Nazma and copy of proforma of means standing be taken on record as additional evidence as proposed by the learned Technical Member or not to be taken on record as additional evidence as proposed by the learned Judicial Member . (N.K. Bajpai) (G.P.. Agarwal) Member (T) Judicial Member The point of difference is referred to Shri P.C. Jain Member (T) Sd/- Harish Chander. 10-6-1992 21. [Order per : P.C. Jain, Member (T)]. - Following difference of opinion has arisen between the Id. Technical Member and the Id. Judicial Member in the present matter: Whether in the facts and circumstances of the case the four documents listed at Sl. Nos. 1,4,5 6, that is to say, statement of Tejmal Gang dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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